Citation Nr: 9832415
Decision Date: 10/30/98 Archive Date: 11/03/98
DOCKET NO. 97-34 393 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee,
Wisconsin
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151 for
disabilities claimed to be due to or aggravated by medical
treatment provided by the Department of Veterans Affairs.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The appellant and his wife
ATTORNEY FOR THE BOARD
Michael Martin, Counsel
INTRODUCTION
The veteran had active service from July 1942 to November
1945.
This matter came before the Board of Veterans’ Appeals
(Board) on appeal from a decision of April 1997 by the
Department of Veterans Affairs (VA) Milwaukee, Wisconsin,
Regional Office (RO).
The Board notes that the veteran has presented contentions
pertaining to a claim for service connection for a
respiratory disorder and a cardiac disorder. Those issues,
however, have not been developed or certified for appellate
review. Accordingly, the Board refers those issues to the RO
for any appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he is entitled to compensation
under 38 U.S.C.A. § 1151 for disabilities claimed to be due
to medical treatment provided by the VA. He asserts that, as
a result of medications which were incorrectly prescribed,
his pulmonary and cardiac disorders were aggravated.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the claim for compensation
under 38 U.S.C.A. § 1151 for disabilities alleged to be due
to or aggravated by medical treatment provided by the VA is
not well-grounded.
FINDING OF FACT
The veteran has not presented any competent evidence showing
that his disabilities resulted from or were aggravated by
medical treatment provided by the VA.
CONCLUSION OF LAW
The claim for compensation under 38 U.S.C.A. § 1151 for
disabilities claimed to be due to or aggravated by medical
treatment provided by the VA is not well grounded.
38 U.S.C.A. § 1151 (West 1991); 38 C.F.R. § 3.358 (1997).
REASONS AND BASES FOR FINDING AND CONCLUSION
In reviewing any claim for VA benefits, the initial question
is whether the claim is well-grounded. The veteran has “the
burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well-
grounded.” See 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8
Vet. App. 69, 73 (1995). A well-grounded claim is “a
plausible claim, one which is meritorious on its own or
capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
§ [5107].” See Murphy v. Derwinski, 1 Vet.App. 78, 81
(1991). If not, the claim must be denied and there is no
further duty to assist the veteran with the development of
evidence pertaining to that claim. See 38 U.S.C.A. § 5107(a)
(West 1991).
Where it is determined that there is additional disability
resulting from disease or injury or an aggravation of an
existing disease or injury suffered as a result of training,
hospitalization, medical or surgical treatment, or
examination provided by the VA, compensation will be payable
for such additional disability. In determining that
additional disability exists, as applied to medical or
surgical treatment, the physical condition prior to the
medical or surgical treatment will be compared to the
subsequent physical condition. See 38 U.S.C.A. § 1151 (West
1991); 38 C.F.R. § 3.358 (1997).
In determining whether such additional disability resulted
from VA medical or surgical treatment, it will be necessary
to show that the additional disability is actually the result
of such treatment, and not merely coincidental therewith.
The mere fact that aggravation occurred will not suffice to
make the disability compensable in the absence of proof that
it resulted from the medical or surgical treatment. See
38 C.F.R. § 3.358(c) (1997).
The veteran has a history of cardiovascular disease and
pulmonary disease, and has been treated by the VA for those
disabilities on many occasions. The Board notes that the
veteran has not presented any competent medical evidence to
support his claim as there is no medical opinion in the
claims file showing that he has disabilities which were due
to or aggravated by VA medical treatment. The only medical
opinions on this issue weigh against the veteran’s claim.
The RO submitted a memorandum to the VAMC in March 1997 which
included a request for a medical opinion and contained the
following comments:
1. The veteran has claimed that he has
increased severity of his respiratory
condition under the provisions of
38 U.S.C.A. § 1151 because of an error by
the pharmacy in labeling his medications.
[summary of 38 U.S.C.A. § 1151 deleted]
2. The record shows that the veteran was
hospitalized from 11-22-96 to 11-26-96
for congestive heart failure and
bronchitis. He was also treated for a
rash. X-rays showed chronic pulmonary
fibrosis with restrictive lung disease.
His discharge medications included
Hydralazine, 25 mg by mouth 4 times per
day and Hydroxyzine, 25 mg by mouth once
per day at bedtime.
The veteran was rehospitalized from 12-
27-96 to 1-1-97 for new onset atrial
fibrillation. This report confirmed that
a mistake had been made in the dosage of
the medications the veteran was taking
for his heart and his rash. When he was
rehospitalized briefly on 1-28-97, his
symptoms of orthopnea and shortness of
breath were markedly improved since one
month previous. The veteran had
complaints of mild dyspnea on exertion.
3. Please review the records and
determine if the veteran had a permanent
increase in the severity of either his
lung condition or his congestive heart
failure as a result of the medication
mix-up. Your opinion must be supported
by reasons and bases. If the opinion is
favorable to the veteran, please examine
him to determine his baseline level of
disability.
A written opinion prepared in March 1997 by a VA physician
contains the following response:
This gentleman has had a history of both
chronic lung disease in the form of
chronic pulmonary fibrosis with
restrictive lung disease and also has an
ischemic cardiomyopathy with marked
decrease in ejection fraction for a long
period of time. The veteran was
hospitalized in November 1996 with
manifestations of both diseases and was
discharged on Hydralazine and
Hydroxyzine. It was noted that the
veteran subsequently was readmitted on
12/27/96 to 1/1/97 with new onset of
atrial fibrillation. It was a concern as
to whether the mislabeling of medications
played a role in the veteran’s
development of atrial fibrillation and
deterioration in condition. The veteran
was treated appropriately and
subsequently discharged and on return had
spontaneously converted to normal sinus
rhythm.
These medications even in excess as a
general rule are not noted in the
literature to predispose to atrial
fibrillation. Considering the extent of
intrinsic heart disease with very poor
ejection fraction, it is entirely
possible that this was a spontaneous
event and was unrelated to the medication
error.
In any event whether the mislabeling
played a role in the onset of atrial
fibrillation, the veteran has
subsequently converted to a normal sinus
rhythm, and there is no evidence in this
chart that either the lung condition or
the congestive heart failure were
increased in any way. All objective
evidence in the chart demonstrates
improvement in cardiac and respiratory
function with the conversion to a normal
sinus rhythm.
Another VA physician came to essentially the same conclusion
in a written opinion dated in April 1997. That opinion also
stated, however, that he could not determine the specific
error by the pharmacy. Nevertheless, even if this opinion is
disregarded for that reason, the fact remains that the only
remaining medical opinion pertaining to the issue on appeal
weighs against the veteran’s claim.
Although the veteran testified during a hearing held in
February 1998 and offered his own opinion that his
disabilities had been aggravated by the medication prescribed
by the VA, the Court has held that lay persons, such as the
veteran, are not qualified to offer an opinion that requires
medical knowledge, such as a diagnosis or an opinion as to
the cause of a disability. See Espiritu v. Derwinski, 2 Vet.
App. 492, 494-5 (1992). See also Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993), in which the Court held that a veteran
does not meet his burden of presenting evidence of a well-
grounded claim where the determinative issue involves medical
causation and the veteran presents only lay testimony by
persons not competent to offer medical opinions.
In summary, the veteran has not presented any competent
evidence showing that his disabilities resulted from or were
aggravated by medical treatment provided by the VA.
Accordingly, the Board concludes that the veteran has not
presented evidence sufficient to justify a belief by a fair
and impartial individual that his claim for compensation
under 38 U.S.C.A. § 1151 for disabilities claimed to be due
to medical treatment provided by the VA is well grounded. As
such, the VA is under no duty to assist the veteran in
developing the facts pertinent to the claims. See Epps v.
Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997).
In reaching the foregoing disposition of the veteran’s claim,
the Board recognizes that this issue is being disposed of in
a manner slightly different from that employed by the RO.
The RO denied the veteran’s claim on the merits, while the
Board has concluded that the claim is not well grounded.
However, the Court has held that “when an RO does not
specifically address the question [of] whether a claim is
well grounded but rather, as here, proceeds to adjudication
on the merits, there is no prejudice to the veteran solely
from the omission of the well-grounded-claim analysis.” See
Meyer v. Brown, 9 Vet. App. 425, 432 (1996).
Further, the Board views its discussion as sufficient to
inform the veteran of the evidence which he must present in
order to make his claim well grounded, and the reasons why
his current claim is inadequate. See Robinette v. Brown, 8
Vet. App. 69, 77-78 (1995).
ORDER
Compensation under 38 U.S.C.A. § 1151 for disabilities
claimed to be due to or aggravated by medical treatment
provided by the VA is denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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